Did You Know...

My syndicated column today covers the crucial battle between truth-telling bloggers versus convicted bomber Brett Kimberlin and his band of malicious online thugs. In honor of the National Day of Blogger Silence called by Ace of Spades, this blog is going dark. (UPDATE: See Ace’s manifesto today here. Read Mandy Nagy’s here.) But far from shutting up, I’ll be spending the day calling, e-mailing, and tweeting members of Congress, GOP leaders, journalists, and influencers to ask them what they are doing to defend the First Amendment rights of bloggers. This is a day of action, not inaction. Below my column, I’ll list some contact info for elected officials who need to hear from you. Please join us and act for free speech. Thank you.

***

Who will protect the freedom to blog?
by Michelle Malkin
Creators Syndicate
Copyright 2012

Free speech is under fire. Online thugs are targeting bloggers (mostly conservative, but not all) who have dared to expose a convicted bomber and perjuring vexatious litigant now enjoying a comfy life as a liberally-subsidized social justice operative. Where do your elected representatives stand on this threat to our founding principles?

On Wednesday, U.S. Senator Saxby Chambliss (R-GA) bravely stepped forward to press this vital issue. In a letter to Attorney General Eric Holder, Sen. Chambliss decried the “harassing and frightening actions” of Internet menaces who have recently gone after several conservative new media citizen journalists and activists. (VIDEO here.)

GOP Rep. Ken Marchant of Texas also added his voice, telling Holder in a statement that he is “very afraid of the potential chilling effects that these reported actions may have in silencing individuals who would otherwise be inclined to exercise their Constitutional right to free speech.” And the American Center for Law and Justice, a leading conservative free speech public interest law firm, announced it was providing legal representation to the National Bloggers Club – a new media association that has provided support and raised funds for targets of this coordinated harassment. (Full disclosure: I volunteer on the National Bloggers’ Club board of directors.)

Sen. Chambliss and Rep. Marchant called specific attention to one terrifying tactic against these bloggers: SWAT-ting. These hoaxes occur “when a perpetrator contacts local police to report a violent incident at a target’s home.” Callers disguise their true identities and locations in order to provoke a potentially deadly SWAT/police response descending upon the targets’ homes.

As online conservatives and now ABC News have reported, recent SWAT-ting victims include New Jersey-based Mike Stack, a blogger and Twitter user targeted last summer after helping to expose disgraced former N.Y. Democratic Rep. Anthony Weiner’s shady social media activities; California blogger Patrick Frey, a deputy district attorney at Los Angeles County District Attorney’s Office who recently posted a bone-chilling account and audio of his summer 2011 SWATting at his blog, Patterico.com; and CNN Contributor and RedState.com managing editor Erick Erickson, whose Georgia home was targeted by a faker claiming an “accidental shooting” there late last month.

A common thread among these and other online targets: They have published web links, commentary, or investigative pieces related to Brett Kimberlin, the infamous “Speedway Bomber.” In 1978, Kimberlin was sentenced to more than 50 years in federal prison for drug dealing, impersonating a federal officer, and a week-long bombing spree in Speedway, Indiana. The violent crimes left one victim so severely injured he committed suicide. A civil court awarded the widow of the victim, Carl Long, $1.6 million. Kimberlin was released from jail in 2001, but has yet to pay up.

After providing brief pro bono legal services to a liberal blogger who refused to whitewash Kimberlin’s past, conservative blogger and lawyer Aaron Walker lost his job. His employer was terrified by the thought of Kimberlin bombing his office and also fired Walker’s wife, who had worked for the same firm. Walker is embroiled in Kafkaesque, free speech-squelching litigation with serial lawsuit filer Kimberlin in Maryland. Last week, an inept judge who admitted abject ignorance about the Internet – and appalling apathy toward key, free-speech Supreme Court cases — essentially gagged Walker from exercising his First Amendment rights and blogging about Kimberlin. (AUDIO at Lee Strahanan’s.Transcripts at Patterico’s.) Kimberlin pulled off a snow job in court, bizarrely claiming that an independent online effort to support Walker and expose Kimberlin’s past amounted to a criminal terror campaign against him. Renowned constitutional law professor Eugene Volokh of UCLA is providing pro bono help to appeal the order against Walker.

National Bloggers Club President Ali Akbar was targeted for spearheading charity efforts for Kimberlin targets; stalkers publicized his mother’s home, and Texas authorities are now investigating. Another conservative blogger who had the audacity to report on Walker’s plight, Robert Stacy McCain, was forced to move out of his home last month after Kimberlin phoned his wife’s employer and intimidated his family.

Never in the eight years that I have worked as an independent blogger have I seen such a concerted threat to the fundamental right of citizen journalists to speak their minds freely and without fear of bodily harm. As former Justice Department official Christian Adams points out, it is a federal violation of 18 U.S.C. §241 to conspire to deprive someone of his “free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States.”

Members of Congress swore an oath to uphold the Constitution — all of it. Who means it?

And our representatives in the US Congress can act, too. 501(c)’s are nonprofit charities whose donors receive a tax deduction. That means Brett Kimberlin’s litigious lifestyle choices aren’t merely outrageous — they are subsidized by you, the taxpayer.

When the Barbara Streisand Foundation donates to one of Brett Kimberlin’s, uh, outfits, that’s deductible, baby!

When Soros’ Tides Foundation or Theresa Heinz’s Heinz Foundation writes a big check for Brett Kimberlin’s um, charitable endeavors, you kick in a little for that.

Now, the nation must perhaps tolerate some amount of harassment and abuse by convicted felons — but does it also have to subsizdize it?
So here is something for the US Congress to consider: Given that a 501(c)(3) is not a “right,” but a creature of the tax code, with very persnickety rules about how it shall be operated and what its principals must do–

Should the principal of a 501(c) be permitted to file vexatious lawsuits which are really SLAPP suits (strategic lawsuits against public participation — lawfare against free speech)?

Or, rather, if someone is a vexatious litigant, should that person be permitted to hold a position as a principal on a 501(c) while continuing to abuse the legal system? Shouldn’t they have to make a choice — respect the legal system, or run a charity, but you can’t be a principal of a charity while engaging in serial abuse of process?

Considering all the rules that must be compiled with for a 501(c)- shouldn’t someone acting as principal for one be expected to comply with rules against harassment by meritless lawsuit as well?

And if they’re not doing the latter, what are the odds they’re scrupulously following the law as regards 501(c)’s?

…One last thing we can do: We can urge/request/demand our representatives read Brett Kimberlin’s criminal history into the United States Congressional Record.
Why? Not for punitive reasons. Rather, to answer the question I posed in the headline.

Did the US Congress strip American citizens of their right to state demonstrably true facts without unending harassments? Did we lose that right simply because Brett Kimberlin has decided, as a Congress of One, that we should no longer have it?
If we have not lost that right — if it is still legal to say, in America, that Brett Kimberlin was convicted of planting eight bombs in Speedway, Indiana, one of which took a man’s leg, and then, distraught over his maiming, his life, via suicide — if it is legal to say this, can we have it stated by a US Congressman for the record that it is still legal to say this?

…Either Americans have the right to state that Kimberlin was convicted of the Speedway Bombing Spree or they do not.
If I no longer have this right, I would like Congress to pass a law stating that I no longer have this right. If we’re repealing the First Amendment, let’s make it official.

Thank you for considering this request that you review the conduct of retired Judge Cornelius Vaughey in the case of Brett Kimberlin v. Aaron Walker (Montgomery Co. District Court, Criminal Division, Case #5D00279004). I believe that Judge Vaughey’s ignorance of the Internet and online discourse, and his willful disregard for well-established legal precedence regarding free speech resulted in the improper arrest and incarceration of the defendant in this case on May 29, 2012.

Briefly, Defendant Walker, an attorney, offered limited assistance to an individual who was being sued by Complainant Kimberlin in an unrelated case (Kimberlin v. Allen, #339254v). The Defendant subsequently published certain facts about Complainant Kimberlin, a public figure and convicted domestic bomber, at the Defendant’s web site, and suggested that Kimberlin should be charged with perjury in the Allen case. At the time, Walker was writing anonymously under the name “Aaron Worthing.”

Despite the fact that Walker’s involvement in the Allen case was minimal and had ended, Kimberlin used motions in that case to identify Walker. Kimberlin then filed for a peace order against Walker, claiming that Walker’s writings amounted to stalking and harassment. Kimberlin also sought criminal prosecution of Walker for an alleged assault outside of a Montgomery County courtroom; an assault that courthouse video proved never occurred.

Based on Kimberlin’s now-disproven testimony, the peace order was allowed to continue to the May 29 hearing. Two days earlier, however, Kimberlin had sworn out an arrest warrant for Walker, alleging that Walker had violated the peace order. Walker was arrested at the conclusion of the hearing before Judge Vaughey.

I have reviewed the transcripts and audio recordings of the May 29 hearing. I was appalled not only by Judge Vaughey’s lack of knowledge of the Internet, email, blogging, etc. but by his willful disregard for Brandenburg v. Ohio, the seminal U.S. Supreme Court case on inciting violent speech. When Walker cited the case, Vaughey replied, “Forget `Bradenburg` [sic]. Let’s go by `Vaughey` right now.”

Throughout the hearing, Vaughey was rude and dismissive of Walker, who represented himself. At least twice, Vaughey called Walker “sport.” At one point, he questioned Walker’s competence by asking if he had any clients. Later, he questioned Walker’s education and threatened him with incarceration for making a valid objection:

“THE COURT: Keep it up, I got a spot for you in the Courthouse.”

Throughout the hearing Kimberlin, a convicted perjurer, made numerous claims upon which Vaughey apparently based his decision. At no point did Vaughey require Kimberlin to present any evidence to support his charges. Had Vaughey made even a token attempt to follow basic rules of evidence, Kimberlin’s statements could have easily been shown to be false. However, on numerous occasions Judge Vaughey interrupted Walker, preventing him from challenging Kimberlin’s claims or presenting his own evidence.

The most alarming aspect of Vaughey’s hearing was the judge’s disregard for Brandenburg in favor of a standard of free speech of Vaughey’s own making. From the transcript:

WALKER: But it is my right under the First Amendment to talk about what this man did to me. It is my right to tell the world what he did to me. That — Galloway v. State made it very specific on harassment–

THE COURT: –Within reason, my friend. Within reason. [emphasis added]

WALKER: Within reason?

THE COURT: Within reason.

WALKER: I have had a crime committed against me. What is unreasonable about seeking justice?

THE COURT: You know, I shouldn’t say this, but I think you’ve got it twisted. The one who decides to prosecute the crimes is the government–

WALKER: –Of course–

THE COURT: –and only the government, and not you.

WALKER: Of course, Your Honor.

THE COURT: And you’re doing this, I think, under a guise — under this new banner of, “I’ve got the right to do.” You can’t. You can’t. Suppose you didn’t like a girl and you wanted to talk about her chastity. He feels the same way. He feels violated. And [inaudible] you have to look at the reasonableness between the two of you on the content. That’s why said, “Where’s this going?”

Vaughey then proceeded to make Walker and his blogging responsible for Kimberlin’s unsupported claims of death threats and other harassment. When Walker told the judge that Brandenburg protected his speech, Vaughey ignored Brandenburg, then described his own sense of justice:

THE COURT: Forget Bradenburg [sic]. Let’s go by Vaughey right now, and common sense out in the world. But you know, where I grew up in Brooklyn, when that stuff was pulled, it was settled real quickly.

WALKER: I’m not sure what that means, your honor.

THE COURT: –Very quickly. And I’m not going to talk about those ways, but boy, it ended fast. I even can tell you, when I grew up in my community, you wanted to date an Italian girl, you had to get the Italian boy’s permission. But that was the old neighborhoods back in the city. And it was really fair. When someone did something up there to you, your sister, your girlfriend, you got some friends to take them for a ride in the back of the truck.

WALKER: Well, Your Honor, what–

THE COURT: –That ended it. You guys have got this new mechanical stuff out here, the electronic stuff, that you can just ruin somebody without doing anything. But you started it.

Finally, as Judge Vaughey rendered his decision, he displayed an incredible degree of ignorance of modern forms of speech. In concert with his disregard for Supreme Court precedence, his gross ignorance resulted in an illegal prior restraint on Walker’s speech and his arrest for exercising a constitutional right:

THE COURT: Okay. All right, sir, this Order shall remain in effect until 11-15 2012. During that period of time, you not — shall commit any act that causes in person (ph) fear and apprehension of bodily harm, any act that places the gentleman in fear and apprehension of grave bodily harm, any assault, rape, attempted rape, sex offense, false imprisonment, harassment, stalking, [inaudible] or malicious destruction of property. The Respondent shall not contact the person in person, by telephone, in writing or any other means, and any other means is putting it on a blog, a Tweet, a megaphone, a — smoke signals — what else is out there — sonar, radar, laser, nothing.

WALKER: So I’m not allowed to speak about him for 6 months? How about the First Amendment?

THE COURT: How many times have you been interrupting? And you shall not contact or harass him in any way. You shall not enter his residence, wherever he may be living. You shall remain away from his place of employment, wherever that may be, he may be employed.

Now, let me get to the — now, should this — should you violate this order, sir, you are subject to being prosecuted by the state’s attorney’s office as a criminal case, and if found guilty, the maximum penalty for the first violation is 90 days in jail and/or it’s a $500 fine, could be a $1,000 fine. Or worse than that, you could be in contempt of this court, where you could — I could do anything that I deem necessary to keep you away from — or e-mailing him or Twitting him or Googling him or Tooting him or smoking (ph) him, whatever phrase you use. I don’t know if [inaudible]. Thank you [inaudible]. [all emphasis mine]

Your Honor, I do not know Judge Cornelius Vaughey. I have read (online, ironically) that he had a long and distinguished career as an attorney, an associate District Court judge and administrative judge. Judge Clyburn said of Vaughey, “Judge Vaughey was always concerned about conveying a positive image of the judicial branch. He was also a leader in innovative dockets and was a fair administrator who sought to deliver equal justice to all.”

It is unfortunate that such gross ignorance and bias in contradiction of Clyburn’s accolades would manifest in the twilight of Vaughey’s career. However, no respect or honor due him should prevent you from righting such an incredible wrong and taking the steps necessary to ensure that what happened to Aaron Walker in a Montgomery County courtroom never happens again.

Now that it is clear that Aaron Walker was arrested for blogging about a public figure — and that a judge has imposed unconstitutional restraints on his speech rights — the next steps are clear:

Aaron Walker needs an immediate court order modifying the current peace order. There must be a clear judicial order stating that Aaron is allowed him to blog, tweet, and otherwise express himself publicly about public figure Brett Kimberlin. Every second that he is muzzled from speaking out is an intolerable crushing of his most sacred American right of free speech.

Aaron Walker needs legal help to obtain a reversal of this unconstitutional peace order, as well as to fight the possible criminal case against him for violating that peace order.

Aaron Walker needs a permanent injunction preventing Brett Kimberlin from seeking peace orders against Aaron based on his public speech about Kimberlin.
To accomplish these goals, we need the spotlight of Big Media on this tremendous injustice. Please spread the word, far and wide.

Takeaway from Popehat, a staunch defender of the Kimberlin targets’ free speech:

I don’t know whether or not Kimberlin is coordinating Team Kimberlin activities, or whether those activities are coordinated at all, as opposed to a bunch of nuts milling about. But if the aim of the nuts, collectively or individually, is to stop public comment on Kimberlin and his activities, then the nuts have failed in a catastrophic, apocalyptic, unhappy-cat-meme-worthy fashion. A senator has started to talk about it, which will lead to more mainstream press attention. Bloggers and lawyers are streaming to the cause. The ACLJ’s arrival could be cited in Urban Dictionary under “deus ex machina.” In short, the more Team Kimberlin attacks and escalates, the worse it gets for them, the louder their critics get, the more voices are raised, and the more public attention is drawn to the cause. Team Kimberlin’s strategy seems to be “I’m going to keep digging until this damn hole gets shallower.”

From Terresa Monroe-Hamilton: “This isn’t about being silenced, it’s about standing as one and screaming over our constitutional rights.”
***